Why it is imperative to update your will
Bequeath your estate without causing difficulties
Just a few hours after the death of the famous and very rich musician Prince, it was rumored that he did not have a will. Even before the celebration of his funeral, the potential heirs, half-brothers and half-sisters, nephews and nieces, finally, a number of persons unknown to the principal concerned, claimed their right to his succession.
How should this story inspire us to make a will? Most of us are neither very rich nor famous. Some believe that the costs of making a notarized will are not worth it. Let's see what happens when you die without a will.
Deceased without will
According to the Civil Code of Québec, when a death occurs without a will, the property of the deceased person will go to the surviving spouse related to the deceased by marriage or civil union and to his family, children or relatives in direct or collateral line, according to an order established by law. Finally, if no parent claims his right, it is the state that will inherit. One-third of the estate without a will go to the married or civil-united spouse and two-thirds goes to the children of the deceased. When the children are minors, the administration of the property transferred to them is automatically entrusted to that of their surviving parent, i.e. their tutor ex officio. If the deceased person does not have a spouse or partner in a civil united party, the entire estate will go to his or her children. On the other hand, if a spouse or partner in a civil marriage, but no descendants, the parents of the deceased will inherit one-third of the estate and the surviving spouse two-thirds. If the parents have already died, it is the siblings as well as the nephews and nieces in the first degree who will inherit this share.
Let's not forget tax planning in such circumstances: much of the value of the estate may simply be lost in taxes.
Validity of the will
It is not absolutely necessary to draw up a will before a notary. According to the Civil Code of Québec, a valid will can take several forms, provided that prescribed formalities are respected.
First, a will must be written. It can be typed by the testator himself or by a third party. The testator must sign it or recognize his signature in front of two major witnesses who sign in his presence. The courts have already recognized the validity of a will recorded on a CD that bore a label with the date, the signature of the testator and that of two witnesses. But using such means carries a risk of invalidity.
The will can also be holographic. It is a will written entirely by the testator and signed by him. No other formality is necessary, except that it is necessary to find the intention to test (make his will).
Reasons to write a will
The best will is drawn up with the help of a lawyer or notary and which has been notarized, which avoids conflicts relating to its validity. The notary must certify the identity and capacity of the testator. It must comply with the laws of the province or jurisdiction in which the testator is domiciled. It is possible that several wills are required if the testator owns property in several different provinces or countries.
Writing a proper will gives the testator greater control over what happens after their death. He or she can determine who will be his heirs and choose the property that will be devolved to them. For common-law spouses, only a will allows them to inherit from one another. The will makes it possible to name the persons who will administer the property after the death. It is necessary to appoint a liquidator who will administer the property until the end of the liquidation of the estate. And if it is necessary to establish a trust for the protection of patrimony or heirs (for example, minor, incapacitated or disabled heirs), a trustee must be appointed.
Tax reasons
Death results in the disposition of all of the deceased's property, which will trigger the immediate taxation of all unrealised gains and deferred taxes. A good will will make possible post-mortem tax planning to maximize the after-tax value of the estate. Thus, the legacy of a Registered Retirement Savings Plan (RRSP/RRIF), a pension plan (RPP/VRSP) or a Tax-Free Savings Account (TFSA) requires good thinking and some legal and tax knowledge to make good choices. The same goes for family residences (primary and secondary)and other capital assets such as collections or investment portfolios.
The drafting of a good will makes it possible to avoid unnecessary conflicts and discussions, to settle advantageously the payment of taxes and to reduce delays in the distribution of goods. Loved ones will be able to keep a peaceful and happy memory of the one who took good care of them until the end.